BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
SB 597 S
Senator Poochigian B
As Amended April 13, 1999
Hearing Date: May 11, 1999 5
Government Code 9
JMR:cjt 7
SUBJECT
Eminent Domain Authority of Joint Powers Agencies
DESCRIPTION
This bill would provide that, unless a joint exercise of
powers agreement specifically provides to the contrary, a
joint powers agency shall not exercise the power of eminent
domain for the purpose of conservation, open space, parks,
or recreation, on any real property within the corporate
limits of a city or the unincorporated area of a county
without first obtaining the consent of the respective city
council or county board of supervisors, and would further
require prior city consent with respect to property in the
unincorporated area of the county that is within the city's
sphere of influence.
BACKGROUND
Joint powers agencies (JPAs) are created when two or more
pubic agencies by agreement jointly exercise any power
common to the contracting agencies, even though one or more
of the contracting agencies may be located outside this
state. JPAs are often used when a project serves several
communities, not just one city or county.
For example, to protect large habitat areas from
development, local officials have created JPAs to acquire
(more)
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and maintain open space. The Wildlife Corridor
Conservation Authority (WCCA) is the creation of the Cities
of Brea, Diamond Bar, La Habra Heights, and Whittier, plus
the Santa Monica Mountains Conservancy. WCCA is acquiring
property between the Cleveland National Forest and the
Whittier-Puente Hills as habitat.
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CHANGES TO EXISTING LAW
Existing law provides that if authorized by their
legislative or other governing bodies, two or more public
agencies, by agreement, may jointly exercise any power
common to the contracting parties, even though one or more
of the contracting agencies may be located outside this
state. These agreements are referred to as joint power
agreements. (Government Code 6502. All further
statutory references are to the Government Code unless
indicated otherwise.)
Existing law provides that with regards to a joint power
agreement, it shall not be necessary that any power common
to the contracting parties be exercisable by each such
contracting party with respect to the geographical areas in
which such power is to be jointly exercised. (Section
6502.)
Existing law provides that a JPA shall possess the common
power specified in the agreement and may exercise it in the
manner or according to the method provided in the
agreement. Such power is subject to the restrictions upon
the manner of exercising the power of one of the
contracting parties, which party shall be designated by the
agreement. (Sections 6508, 6509.)
Existing law provides that every county and city must adopt
an open space element as part of its general plan.
Counties and cities must follow their own space elements
and the rest of their general plans when they acquire or
dispose of open space land. (Section 65566.)
Existing law prohibits other local agencies from acquiring
land inside a county or city until local planners review
the acquisition's conformity with the general plan.
However, if the county or city disapproves the land
acquisition, the other local agency can still override the
local general plan. (Section 65402.)
This bill would provide that, unless a joint exercise of
powers agreement specifically provides to the contrary, a
joint powers agency shall not exercise the power of eminent
domain for the purpose of conservation, open space, parks,
or recreation, on any real property within the corporate
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limits of a city or the unincorporated area of a county
without first obtaining the consent of the respective city
council or county board of supervisors.
This bill also would provide that if the property proposed
to be condemned by the joint powers agency is in the
unincorporated area of the county and also within the
sphere of influence of a city, the agency would not be able
to exercise the power of eminent domain on that property
without also first obtaining the consent of the city
council of that city. The participation of a county or a
city as a contracting party to an agreement shall not
constitute the consent required by this section.
COMMENT
1. Stated need for legislation
The sponsor, the California Business Property Owner's
Association, states that while JPAs are an important tool
that allow public agencies to collaborate, the exercise
of powers of eminent domain by a JPA can interfere with a
planning process of a city or county. The sponsor
contends that this is particularly the case when a JPA
condemns land for conservation, open space, parks or
recreation because such uses may foreclose other uses
which a county or city, or in the case of the sponsor, a
developer, has planned for the property.
2. Would this bill inappropriately permit a city or county
to stop a multi-jurisdictional project ?
Existing law allows local agencies, as well as JPAs made
up of local agencies, to override city and county general
plans because some projects serve several communities and
must be considered in a more global context. For
example, an irrigation district, in constructing canals
and pipelines, must submit plans for construction of such
canals and pipelines to the county and city planning
commissions for approval, but disapproval of the
district's proposals is merely advisory in nature and may
be overruled by the governing body of the district.
(See, 37 Ops.Atty. Gen. 89 (1961).)
Existing law recognizes that the local interests of
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developers or cities should not be able to block a water
canal, a sewer line, a major road, or a wildlife corridor
that is needed to serve a wider area. Allowing one set
of local officials at the city or county level to block a
multi-jurisdictional project exalts local interests over
the broader considerations of the public at large.
SB 597 would permit a single city or county to veto an
otherwise authorized acquisition for conservation, open
space, parks or recreation. Significantly, even if this
bill were enacted, if the local agencies were acting
separately as opposed to pursuant to a JPA, the city or
county would not be able to veto the acquisition and
project. (Section 65402.) The fact that local agencies
have joined together to address an issue on a larger
scale should be all the more reason that a single city or
county should not be permitted to stop the project.
3. Is this bill necessary ?
Some believe that the situation that prompted the
introduction of this bill revolves around the creation of
the Wildlife Corridor Conservation Authority (WCCA). As
set forth above, WCCA is a JPA created between the Cities
of Brea, Diamond Bar, La Habra Heights, and Whittier,
plus the Santa Monica Mountains Conservancy. WCCA is
acquiring property between the Cleveland National Forest
and the Whittier-Puente Hills as habitat.
The joint powers agreement allows a member city to veto
WCCA's use of eminent domain inside its city limits.
However, Diamond Bar's sphere of influence extends into
an unincorporated area that WCCA wants to acquire.
Apparently, some landowners worry that WCCA will use its
eminent domain powers to acquire habitat that they want
to develop after annexing to the city. Although Diamond
Bar officials can veto WCCA's condemnations inside its
city limits, they cannot stop WCCA from using eminent
domain in the unincorporated area covered by the sphere
of influence. This bill would allow them to do so.
However, if landowners and Diamond Bar officials were
concerned that WCCA might condemn property that they want
to develop in the city's sphere of influence, the city
should have negotiated to have the authority to veto such
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uses in the joint powers agreement. Under a joint powers
agreement, the agency has the common power specified in
the agreement and may exercise it in the manner or
according to the method provided in the agreement.
(Sections 6508.) Thus, if one purpose behind this bill
is to allow a city to control areas currently outside its
jurisdiction, such issues can be more appropriately
resolved during the negotiations of a joint powers
agreement.
Support: California Association of Realtors; City of
Sacramento
Opposition: Planning and Conservation League; Sierra Club;
Audubon Society; City of Brea
HISTORY
Source: California Business Property Owner's Association
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Senate Local Government 5-0
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